When we touch on Constitutional issues, most often we are posting about due process concerns raised by procedural shortcuts, proposed for administrative or efficiency reasons, at the potential expense of a defendant’s rights. Today we get to actually write about a First Amendment issue, as the Ninth Circuit recently blocked San Francisco’s attempt to implement its local cellphone radiation warning ordinance because it violates the First Amendment. See CTIA – The Wireless Association v. City and County of San Francisco, Calif., No. 11-17773 (9th Cir.). It is a wonderful reminder about this freedom, which separates our nation from much of the world.
San Fransisco passed an ordinance imposing warning language standards on cell phone retailers, specifically requiring cell phone sellers to make certain disclosures to consumers about radio-frequency energy emissions from cell phones. S.F. Ordinance 156-11 was originally set to take effect in October 2011, but CTIA – The Wireless Association filed suit challenging the constitutionality of the law. CTIA contended the San Francisco law conflicted with the FCC’s safety standards and violated rights of free speech by forcing retailers to communicate alarmist messages about cellphone radiation.
The district court enjoined enforcement of part of the ordinance, and both sides appealed. The Ninth Circuit panel affirmed the injunction and noted two problems with the ordinance. First, under the standard established in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1986), any governmentally compelled disclosures to consumers must be “purely factual and uncontroversial.” Id. at 651. The law here required cellphone retailers to provide every customer with an informational “fact sheet” about the possible health risks of radio-frequency energy emissions from cellphones. That fact sheet contained more than just facts. It also contained San Francisco’s recommendations as to what consumers should do if they want to reduce exposure to radio-frequency energy emissions. This language could be interpreted by consumers as expressing San Francisco’s opinion that using cell phones is dangerous. The FCC, however, has established limits of radio-frequency energy exposure, within which it has concluded using cell phones is safe. See, e.g., Guidelines for Evaluating the Envt’l Effects of Radio-frequency Radiation, 11 F.C.C.R. 15123, 15184 (1996). Even the findings made by the San Francisco Board of Supervisors on which the challenged ordinance was predicated acknowledged that there “is a debate in the scientific community about the health effects of cell phones,” and the district court observed that “San Francisco concedes that there is no evidence of cancer caused by cell phones.” The court of appeals could not say on the basis of this record that the fact sheet was both “purely factual and uncontroversial.” Zauderer, 471 U.S. at 651.
The ordinance also required retailers to prominently display an informational poster in their stores, and to paste an informational sticker on all display literature for cellphones warning about the possible health risks of radio-frequency energy emissions from cellphones. The district court enjoined the original ordinance compelling distribution of these broader materials. Since the ordinance sought to compel statements that are even more misleading and controversial than the fact sheet, the original injunction must be affirmed, said the appeals court.